Dec. 26, 2013

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A Springfield sex offender who had a charge thrown out three years ago can now be prosecuted.

The Missouri Supreme Court ruled Tuesday that Edwin F. Carey, 51, and two other defendants can be prosecuted under a law barring convicted sex offenders from being within 500 feet of public parks that have swimming pools or playground equipment.

At issue was whether the law violated a ban in the state Constitution against retrospective laws. All three men had been convicted of a sexual offense before the statute was adopted.

Carey was convicted of second-degree statutory sodomy in Scott County in 1997. In 2010, he was charged in Greene County with being a sex offender within 500 feet of a park.

Carey’s charge was initially dismissed because the law making it illegal for a sex offender to be that close to a park was enacted in 2002, long after his 1997 conviction.

The attorney for Carey, and for the others, had argued that the rule on retrospective laws applied to both civil issues and criminal penalties.

The divided Missouri Supreme Court ruled Tuesday the prohibition on being near such parks is a criminal law, so the prohibition against retrospective laws does not apply.

The members of the court said because the law against sex offenders being near a park is a criminal statue, “the circuit court erred in dismissing the charges against ... Carey on the ground the the statute was unconstitutionally retrospective as applied to (him).”

Supreme Court Judge Zel Fischer wrote in the majority opinion that the park law is part of the criminal code, uses the language of a criminal provision and does not depend upon someone’s registration as a sex offender. He said the law also carries a severe punishment.

“The General Assembly intended for this statute to punish felons, who had been convicted of committing specific, enumerated crimes, for engaging in future conduct that the General Assembly determined should be prohibited,” Fischer wrote.

Three of the court’s seven judges agreed with Fischer.

There was a dissenting opinion filed by Judge George Draper, who agreed with the dismissal of Carey’s case, saying the section about sex offenders being near parks should be construed as a civil law and subject to “retrospective examination.”

Draper said the law is designed to protect the public from harm and derives from the requirement for sex offenders to register, which has been deemed nonpunitive and civil in nature.

Draper was joined by two other judges in his opinion.

Carey’s dismissal was reversed and remanded to Greene County Circuit Court.

The Supreme Court case also included reviews of the cases involving the other two sex offenders: Jason Reece Peterson’s dismissed Carroll County case and Michael Wade’s conviction in St. Louis County.